no requirement to produce entire contraband material before the Court. to prove seizer= If the seizure of the material is otherwise proved on record and is not even doubted or disputed the entire contraband material need not be placed before this Court. If the seizure is otherwise not in doubt, there is no requirement that the entire material ought to be produced before the Court. At times the material could be so bulky, for instance as in the present material when those 7 bags weighed 223 kgs that it may not be possible and feasible to produce the entire bulk before the Court. If the seizure is otherwise proved, what is required to be proved is the fact that the samples taken from and out of the contraband material were kept intact, that when the samples were submitted for forensic examination the seals were intact, that the report of the forensic experts shows the potency, nature and quality of the contraband material and that based on such material, the essential ingredients constituting an offence are made out.

Criminal Appeal No .1497 of 2019 arising out of SLP(Crl) No.8428 of 2016
State of Rajasthan vs. Sahi Ram
1
Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1497 OF 2019
(Arising out of SLP(Crl.) No.8428 of 2016)
STATE OF RAJASTHAN …APPELLANT
VERSUS
SAHI RAM …RESPONDENT
J U D G M E N T
Uday Umesh Lalit, J.

  1. Leave granted.
  2. This appeal challenges the final order dated 07.04.2016 passed by
    the High Court1
    in S.B. Criminal Appeal No.774 of 2015.
  3. On receiving source information on 20.06.2006 that in a white
    coloured Tavera vehicle bearing registration No.RJ27-TC-0323 three
    persons were coming from Madhya Pradesh along with contraband
    material namely poppy straw and were proceeding towards Jodhpur, the
    information was reduced to writing and a copy was immediately forwarded
    to the superior officers in terms of requirements of Section 42 of the
    1 The High Court of Judicature for Rajasthan at Jodhpur
    Criminal Appeal No .1497 of 2019 arising out of SLP(Crl) No.8428 of 2016
    State of Rajasthan vs. Sahi Ram
    2
    Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter
    referred to as “the NDPS Act”).
  4. A team was thereafter constituted which reached the Railway
    crossing near petrol pump Nimbahera. Two private persons named Kishan
    Lal and Chaman Lal were asked to associate as Panchas. At 9.40 AM, the
    vehicle was seen coming from Neemuch and was stopped. The vehicle
    was being driven by the respondent while the other two occupants were
    identified as Sohan and Kanhaiya Lal. After following mandatory
    requirements under the provisions of the NDPS Act, the vehicle was
    searched, during which seven bags of poppy straw, the gross weight being
    223 kgs were found behind the driver’s seat. From every bag two samples
    of 500 grams were taken and two such samples were sealed. Remaining
    quantity of 2500 grams was put in a separate pouch. The bags weighing
    about 223 kgs were also sealed. Punchnama to that effect was recorded
    which bore the signatures of the respondent and other persons.
  5. After completing investigation, charge-sheet was filed against the
    respondent and against said Sohan and Kanhaiya Lal for the offence
    punishable under Section 8 read with 15 of the NDPS Act while the
    investigation was kept pending against one Shyam Sunder, his wife Vimla,
    the owners of the vehicle and one Pappu Raja. By Order dated 25.05.2015,
    Criminal Appeal No .1497 of 2019 arising out of SLP(Crl) No.8428 of 2016
    State of Rajasthan vs. Sahi Ram
    3
    said Sohan and Kanhaiya Lal were marked as absconding accused in the
    trial.
  6. The prosecution examined eighteen witnesses in support of its
    case. PW15, Surender Singh, from Police Station Nimbahera had
    entered the information in Rojnamcha and had intimated the superior
    officials. As regards the recovery of the contraband material he stated:-
    “…… Behind the driver’s seat there were white
    plastic bags which were tied with strings, which were
    opened with the help of the police team and the
    witnesses, and smelled, and then everybody told it to
    be poppy husk. They were asked if they had any valid
    license for this poppy husk and they had told that they
    do not have any license. Their above act of all the
    three people was found to be punishable offence
    under section 8/15 NDPS Act due to which the bags
    were taken out of the vehicle, all the bags were
    weighed, then, in the 7 bags 223 kg poppy husk was
    found. 500 gm poppy husk was taken out from every
    bag and was weighed together and it came out to be
    3500 gm. Out of this two samples of 500 gm each
    were put in plastic packets and were then put in white
    cloth bags and seal stamped. The sample was marked
    A and the control sample was marked B. the
    remaining 2500 gm sample was seal stamped and
    given mark C.”
    “…..All the three accused Sahi Ram, Sohan,
    Kanhaiya Lal were given notices under section 52 and
    were arrested. I recognize all the three accused, who
    are today not present in the court. The notice given to
    witness Kishan is Exibit P-1, which bears my
    signatures from E to F, and the signatures of Kishan
    are from C to D, the notice given to Chaman is Exibit
    P-17, which bears my signatures from E to F, and the
    signatures of Chaman are from C to D. the notice
    given to accused Sahi Ram under section 50 is Exibit
    P-2, the notice given to accused Sohan under section
    Criminal Appeal No .1497 of 2019 arising out of SLP(Crl) No.8428 of 2016
    State of Rajasthan vs. Sahi Ram
    4
    50 is Exibit P-3, the notice given to accused Kanhaiya
    Lal under section 50 is Exibit P-4, which bears my
    signatures from E to F, and the signatures of accused
    are from G to H. the memo of seizure of poppy husk
    is Exibit P-5, which bears my signatures from E to F,
    and the signatures of accused are from G to H, I to J,
    K to L.”
  7. After considering the relevant evidence on record, the Special
    Judge, NDPS Case No.2, Chittorgarh vide judgment dated 01.08.2015
    found that the case was established against the respondent herein and he
    was convicted for offence punishable under Section 8 read with 15 of the
    NDPS Act. By a separate order of even date, the respondent was sentenced
    to suffer rigorous imprisonment for fifteen years and to pay fine of
    Rs.1,50,000/-; in default whereof he was directed to suffer further rigorous
    imprisonment for one year. It was observed by the trial court:-
    “….. In the present case, charge of keeping total
    223 kilograms of illegal Dodachura in his conscious
    possession and transporting it in Tavera car bearing
    No. RJ27-TC-0323 has been proved against the
    accused Sahi Ram in the present case, in regard to
    which he had no valid license to keep the same in his
    possession and quantity of seized illegal Dodachura is
    more than commercial quantity.”
  8. The respondent being aggrieved filed S.B. Criminal Appeal No.774
    of 2015 before the High Court. Only one ground was urged in support of
    the appeal that the Muddamal i.e., contraband material in question was not
    produced before the Court and that the evidence on record did not support
    Criminal Appeal No .1497 of 2019 arising out of SLP(Crl) No.8428 of 2016
    State of Rajasthan vs. Sahi Ram
    5
    the case about the seizure and recovery of 223 kgs. of contraband. The
    High Court accepted the submission and concluded that only two samplespackets and one bag of poppy straw weighing 2.5 kg were produced and
    exhibited while the entire contraband material was not produced and
    exhibited. Relying on the decisions of this Court in Noor Aga v. State of
    Punjab & Another2
    , Jitendra & Another v. State of Madhya Pradesh3
    ,
    Ashok alias Dangra Jaiswal v. State of Madhya Pradesh4
    and Vijay Jain
    v. State of Madhya Pradesh5
    it was observed that failure to exhibit
    Muddamal and contraband material was fatal to the case of prosecution.
    The High Court observed:-
    “….Non-exhibition of the Muddamal in the court
    leads to the irrefutable conclusion that the prosecution
    failed to lead primary evidence of the seizure and
    thus, the entire evidence of the prosecution regarding
    the alleged recovery has to be discarded.
    Since in the case at hand, the prosecution failed
    to exhibit the Muddamal in the court, the entire
    evidence of the prosecution regarding alleged seizure
    has to be discarded.”
    With the aforesaid view, the High Court allowed the appeal, set
    aside the Judgment and Order dated 01.08.2015 passed by the Special
    Judge and acquitted the respondent of the charge levelled against him.
    2 (2008) 16 SCC 417
    3 (2004) 10 SCC 562
    4 (2011) 5 SCC 123
    5 (2013) 14 SCC 527
    Criminal Appeal No .1497 of 2019 arising out of SLP(Crl) No.8428 of 2016
    State of Rajasthan vs. Sahi Ram
    6
  9. We heard Dr. Manish Singhvi, learned Senior Advocate for the
    State and Mr. Saurabh Ajay Gupta, learned Advocate for the respondent.
  10. At the outset, it must be considered whether the cases relied upon
    by the High Court state in unequivocal terms that in case of failure to
    produce the contraband material before the Court, the case of the
    prosecution is required to be discarded or not.
  11. In Jitendra & Another v. State of Madhya Pradesh3
    , it was
    undoubtedly submitted on behalf of the accused that the material objects
    were not at all produced at the trial. The submission in that behalf was
    recorded in para No.4 as under:
    “4. The learned counsel for the appellants strongly
    urged that the High Court has completely missed the
    crucial issue that was urged on behalf of the accused.
    He pointed out that this was a strange case where the
    material objects viz. one kilogram charas alleged to
    have been seized from the custody of Jitendra, and
    one kilogram ganja alleged to have been seized from
    the possession of Jitendra’s mother, accused Sheela,
    were not at all produced at the trial.”
    It was further submitted that there was no material whatsoever to
    prove that the samples that were dispatched to the FSL were actually
    drawn from the seized material. The matter was considered by this Court
    as under:
    “6. In our view, the view taken by the High Court is
    unsustainable. In the trial it was necessary for the
    Criminal Appeal No .1497 of 2019 arising out of SLP(Crl) No.8428 of 2016
    State of Rajasthan vs. Sahi Ram
    7
    prosecution to establish by cogent evidence that the
    alleged quantities of charas and ganja were seized
    from the possession of the accused. The best evidence
    would have been the seized materials which ought to
    have been produced during the trial and marked as
    material objects. There is no explanation for this
    failure to produce them. Mere oral evidence as to their
    features and production of panchnama does not
    discharge the heavy burden which lies on the
    prosecution, particularly where the offence is
    punishable with a stringent sentence as under the
    NDPS Act. In this case, we notice that panchas have
    turned hostile so the panchnama is nothing but a
    document written by the police officer concerned. The
    suggestion made by the defence in the crossexamination is worthy of notice. It was suggested to
    the prosecution witnesses that the landlady of the
    house in collusion with the police had lodged a false
    case only for evicting the accused from the house in
    which they were living. Finally, we notice that the
    investigating officer was also not examined. Against
    this background, to say that, despite the panch
    witnesses having turned hostile, the non-examination
    of the investigating officer and non-production of the
    seized drugs, the conviction under the NDPS Act can
    still be sustained, is far-fetched.
  12. The learned counsel for the appellants brought to
    our notice two more facts. The High Court seems to
    have relied on a copy of the letter dated 14-8-1999
    written by the Superintendent of Police, Datia to the
    Director, State Forensic Laboratory, Sagar and placed
    reliance thereupon, although this was not a document
    produced during the trial and proved according to law.
    The High Court commented that the prosecution had
    failed to exhibit the letter during the trial and that the
    trial court was not vigilant in this respect. In the
    absence of anyone affirming the correctness of the
    contents of the letter, the High Court has placed
    reliance on the contents of the letter merely on the
    ground that the said document was mentioned at
    Serial No. 9 in the charge-sheet, and presumably its
    copy must have been supplied to the accused. This is
    another lacuna, noticeable in the judgment of the High
    Court.
    Criminal Appeal No .1497 of 2019 arising out of SLP(Crl) No.8428 of 2016
    State of Rajasthan vs. Sahi Ram
    8
  13. The learned counsel for the appellant drew our
    attention to the final report dated 3-10-1999 submitted
    under Section 173 CrPC, from the original file. We
    notice something peculiar here. In the final report, in
    column 16, headed “Result of laboratory analysis”, it
    is stated “report of FSL, Sagar is awaited”.
    Interestingly, the report of the State Forensic
    Laboratory, Sagar is dated 30-8-1999 (Ext. P-17)
    certifying that the packets ‘A’, ‘B’ and ‘C’ sent to the
    laboratory contained charas and ganja. It appears
    strange to us that the final report submitted under
    Section 173 CrPC on 3-10-1999, on which the chargesheet was based, was submitted by the police officer
    concerned either without being aware of or without
    reading the report of the Forensic Science Laboratory.
    Or else, the Forensic Science Laboratory’s report is
    ante-dated. This is another circumstance which
    militates strongly against the prosecution.
  14. Taking the cumulative effect of all the
    circumstances, it appears to us that the material placed
    on record by the prosecution does not bring home the
    charge beyond reasonable doubt. We are of the view
    that upon the material placed on record it would be
    unsafe to convict the appellants. They are certainly
    entitled to the benefit of doubt.” (emphasis added)
  15. In Ashok alias Dangra Jaiswal v. State of Madhya Pradesh4
    , it
    was observed as under: –
    “9. The seizure witnesses turning hostile may not be
    very significant, as it is not an uncommon
    phenomenon in criminal trials, particularly in cases
    relating to NDPS but there are some other
    circumstances which, when taken together, make it
    very unsafe to uphold the appellant’s conviction.
  16. The seizure of the alleged narcotic substance is
    shown to have been made on 8-3-2005, at 11.45 in the
    evening. The samples taken from the seized substance
    were sent to the FSL on 10-3-2005, along with the
    Criminal Appeal No .1497 of 2019 arising out of SLP(Crl) No.8428 of 2016
    State of Rajasthan vs. Sahi Ram
    9
    draft, Ext. P-31. The samples sent for forensic
    examination were, however, not deposited at the FSL
    on that date but those came back to the police station
    on 12-3-2005 due to some mistake in the draft or with
    some query in respect of the draft. The samples were
    sent back to the FSL on 14-3-2005, after necessary
    corrections in the draft and/or giving reply to the
    query and on that date the samples were accepted at
    the FSL. From the time of the seizure in the late
    evening of 8-3-2005, till their deposit in the FSL on
    14-3-2005, it is not clear where the samples were laid
    or were handled by how many people and in what
    ways.
  17. The FSL report came on 21-3-2005, and on that
    basis the police submitted charge-sheet against the
    accused on 31-3-2005, but the alleged narcotic
    substance that was seized from the accused, including
    the appellant was deposited in the malkhana about
    two months later on 28-5-2005. There is no
    explanation where the seized substance was kept in
    the meanwhile.
  18. Last but not the least, the alleged narcotic powder
    seized from the possession of the accused, including
    the appellant was never produced before the trial
    court as a material exhibit and once again there is no
    explanation for its non-production. There is, thus, no
    evidence to connect the forensic report with the
    substance that was seized from the possession of the
    appellant or the other accused.”
    Relying on the decision of this Court in Jitendra3
    , the benefit of
    doubt was given and the accused was acquitted.
  19. In Vijay Jain v. State of Madhya Pradesh5
    , it was submitted on
    behalf of the accused, as is evident from para 4 of the decision, that there
    was non-production of the contraband goods. This Court dealt with the
    matter as under:-
    Criminal Appeal No .1497 of 2019 arising out of SLP(Crl) No.8428 of 2016
    State of Rajasthan vs. Sahi Ram
    10
    “9. Para 96 of the judgment of this Court in Noor Aga
    case2 on which the learned counsel for the State very
    strongly relies is quoted hereinbelow: (SCC p. 464)
    “96. Last but not the least, physical evidence
    relating to three samples taken from the bulk
    amount of heroin was also not produced. Even if
    it is accepted for the sake of argument that the
    bulk quantity was destroyed, the samples were
    essential to be produced and proved as primary
    evidence for the purpose of establishing the fact
    of recovery of heroin as envisaged under Section
    52-A of the Act.”
    Thus in para 96 of the judgment in Noor Aga case2
    this Court has held that the prosecution must in any
    case produce the samples even where the bulk
    quantity is said to have been destroyed. The
    observations of this Court in the aforesaid paragraph
    of the judgment do not say anything about the
    consequence of non-production of the contraband
    goods before the court in a prosecution under the
    NDPS Act. (Emphasis added)
  20. On the other hand, on a reading of this Court’s
    judgment in Jitendra case3, we find that this Court
    has taken a view that in the trial for an offence under
    the NDPS Act, it was necessary for the prosecution to
    establish by cogent evidence that the alleged
    quantities of the contraband goods were seized from
    the possession of the accused and the best evidence to
    prove this fact is to produce during the trial, the seized
    materials as material objects and where the
    contraband materials alleged to have been seized are
    not produced and there is no explanation for the
    failure to produce the contraband materials by the
    prosecution, mere oral evidence that the materials
    were seized from the accused would not be sufficient
    to make out an offence under the NDPS Act
    particularly when the panch witnesses have turned
    hostile. Again, in Ashok4 this Court found that the
    alleged narcotic powder seized from the possession of
    the accused was not produced before the trial court as
    material exhibit and there was no explanation for its
    Criminal Appeal No .1497 of 2019 arising out of SLP(Crl) No.8428 of 2016
    State of Rajasthan vs. Sahi Ram
    11
    non-production and this Court held that there was
    therefore no evidence to connect the forensic report
    with the substance that was seized from the
    possession of the appellant.
  21. We are thus of the view that as the prosecution has
    not produced the brown sugar before the Court and
    has also not offered any explanation for nonproduction of the brown sugar alleged to have been
    seized from the appellants and as the evidence of the
    witnesses (PW 2 and PW 3) to the seizure of the
    materials does not establish the seizure of the brown
    sugar from the possession of the appellants, the
    judgment of the trial court convicting the appellants
    and the judgment of the High Court maintaining the
    conviction are not sustainable.” (emphasis added)
  22. In a recent decision dated 30th July, 2019 of this Court in Vijay
    Pandey v. State of Uttar Pradesh6
    the benefit was extended on the ground
    that there was no co-relation between the seized samples and one that was
    tested. Reliance was placed on the observations of this Court in Vijay
    Jain5 which inter alia stated that there was no evidence to connect the
    forensic report that the substance that was seized from the possession of
    the accused. The relevant observations are to be found in para 8 of the
    decision:
    “8. The failure of the prosecution in the present case
    to relate the seized sample with that seized from the
    appellant makes the case no different from failure to
    produce the seized sample itself. In the circumstances
    the mere production of a laboratory report that the
    samples tested was narcotics cannot be conclusive
    proof by itself. The sample seized and that tested
    6 Criminal Appeal No.1143 of 2019 @ SLP(Crl) No.1273 of 2019 decided on
    30.07.2019
    Criminal Appeal No .1497 of 2019 arising out of SLP(Crl) No.8428 of 2016
    State of Rajasthan vs. Sahi Ram
    12
    have to be co-related. The observations in Vijay
    Jain5
    , as follows are considered relevant:
  23. On the other hand, on a reading of this Court’s
    judgment in Jitendra case3, we find that this Court
    has taken a view that in the trial for an offence under
    the NDPS Act, it was necessary for the prosecution to
    establish by cogent evidence that the alleged
    quantities of the contraband goods were seized from
    the possession of the accused and the best evidence to
    prove this fact is to produce during the trial, the seized
    materials as material objects and where the
    contraband materials alleged to have been seized are
    not produced and there is no explanation for the
    failure to produce the contraband materials by the
    prosecution, mere oral evidence that the materials
    were seized from the accused would not be sufficient
    to make out an offence under the NDPS Act
    particularly when the panch witnesses have turned
    hostile. Again, in Ashok4 this Court found that the
    alleged narcotic powder seized from the possession of
    the accused was not produced before the trial court as
    material exhibit and there was no explanation for its
    non-production and this Court held that there was
    therefore no evidence to connect the forensic report
    with the substance that was seized from the
    possession of the appellant.” (emphasis added)
  24. It is true that in all the aforesaid cases submission was advanced on
    behalf of the accused that failure to produce contraband material before the
    Court ought to result in acquittal of the accused. However in none of the
    aforesaid cases said submission singularly weighed with this Court to
    extend benefit of acquittal only on that ground. As is clear from decision
    of this Court in Jitendra3
    , apart from the aforesaid submission other facets
    of the matter also weighed with the Court which is evident from paras 7 to
    Criminal Appeal No .1497 of 2019 arising out of SLP(Crl) No.8428 of 2016
    State of Rajasthan vs. Sahi Ram
    13
    9 of the decision. Similarly in Ashok4
    , the fact that there was no
    explanation where the seized substance was kept (para 11) and the further
    fact that there was no evidence to connect the forensic report with the
    substance that was seized, (para 12) were also relied upon while extending
    benefit of doubt in favour of the accused. Similarly, in Vijay Jain5
    , the fact
    that the evidence on record did not establish that the material was seized
    from the appellants, was one of the relevant circumstances. In the latest
    decision of this Court in Vijay Pandey6
    , again the fact that there was no
    evidence to connect the forensic report with the substance that was seized
    was also relied upon to extend the benefit of acquittal.
    It is thus clear that in none of the decisions of this Court, nonproduction of the contraband material before the Court has singularly been
    found to be sufficient to grant the benefit of acquittal.
  25. Turning to the facts in the present matter, the evidence of PW15
    Surender Singh shows that from and out of 7 bags of poppy husk, samples
    weighing about 500 grams were taken out of each bag. Out of these 3500
    grams thus taken out, two samples of 500 grams were independently sealed
    while rest 2500 grams were also sealed in a separate pouch. These samples
    were marked A, B and C respectively. The bags were also independently
    sealed and taken in custody and Exbt-5 seizure memo which recorded all
    these facts was also signed by the accused. We have gone through the
    Criminal Appeal No .1497 of 2019 arising out of SLP(Crl) No.8428 of 2016
    State of Rajasthan vs. Sahi Ram
    14
    cross-examination of the witness. At no stage even a suggestion was put to
    the witness that either the signatures of the accused were taken by fraud,
    coercion or mis-representation or that the signatures were not of the
    accused or that they did not understand the purport of the seizure memo. It
    would therefore be difficult to even suggest that the seizure of contraband
    weighing 223 kgs was not proved by the prosecution. In our view this fact
    stood conclusively proven.
  26. If the seizure of the material is otherwise proved on record and is
    not even doubted or disputed the entire contraband material need not be
    placed before this Court. If the seizure is otherwise not in doubt, there is
    no requirement that the entire material ought to be produced before the
    Court. At times the material could be so bulky, for instance as in the
    present material when those 7 bags weighed 223 kgs that it may not be
    possible and feasible to produce the entire bulk before the Court. If the
    seizure is otherwise proved, what is required to be proved is the fact that
    the samples taken from and out of the contraband material were kept intact,
    that when the samples were submitted for forensic examination the seals
    were intact, that the report of the forensic experts shows the potency,
    nature and quality of the contraband material and that based on such
    material, the essential ingredients constituting an offence are made out.
    Criminal Appeal No .1497 of 2019 arising out of SLP(Crl) No.8428 of 2016
    State of Rajasthan vs. Sahi Ram
    15
  27. In the aforesaid premises the conclusion drawn by the High Court
    was completely unsustainable and the High Court erred in extending the
    benefit of acquittal to the respondent. We, therefore, allow this appeal, set
    aside the view taken by the High Court and restore the order of conviction
    as recorded by the trial court against the respondent in its judgment and
    order dated 01.08.2015. The minimum sentence of imprisonment for the
    offence punishable under Section 8 read with 15 of the NDPS Act is 10
    years.
    Considering the facts on record, in our view the appropriate
    sentence would be Rigorous Imprisonment for 10 years as substantive
    sentence. We order accordingly, keeping the other parts of sentence
    namely sentence of fine and sentence in default of payment of fine as
    ordered by the trial court, intact and unchanged.
  28. The appeal stands allowed in aforesaid terms.
  29. We direct the respondent to surrender before the concerned Police
    Station within seven days from today, failing which, the respondent shall
    immediately be taken in custody by the concerned police station.
    Criminal Appeal No .1497 of 2019 arising out of SLP(Crl) No.8428 of 2016
    State of Rajasthan vs. Sahi Ram
    16
    A copy of this order of this Court shall be sent to the concerned
    CJM as well as the Police Station for intimation and compliance.
    ………………………..J.
    [Uday Umesh Lalit]
    ………………………..J.
    [Vineet Saran]
    New Delhi;
    September 27, 2019.